[2025] SADC 53

Prosecution: R Counsel: MS M MCKENDRICK - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: JM Counsel: MR S MCDONOUGH - Solicitor: NICHOLAS THOMSON LEGAL Hearing Date/s: 20/05/2024 to 21/05/2024 File No/s: DCCRM-23-002898 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v JM Criminal Trial by Judge Alone [2025] SADC 53 Reasons for the Verdicts of his Honour Judge Barklay 13 May 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT The accused is charged with two counts of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that the accused raped the complainant by inserting his finger into her vagina, and then his penis, without her consent, knowing that she was not consenting, or being recklessly indifferent as to whether she consented. Verdict: Not Guilty. Criminal Law Consolidation Act 1935 (SA) ss 47, 48(1); Evidence Act 1929 (SA) s 34N, referred to. R v T,S (2017) 128 SASR 66, 89 (Hinton J); Burns v R (1975) 132 CLR 258, considered. -- 1 of 25 -- -- 2 of 25 -- R v JM [2025] SADC 53 1 The accused, JM is charged with two counts of rape pursuant to s 48(1) of the Criminal Law Consolidation Act 1935 (SA). JM pleaded not guilty and elected to be tried by judge alone. 2 The two counts of rape relate to an occasion when JM put his fingers (Count 1) and then his penis (Count 2) inside the complainant, GS’s vagina. There is no dispute that he did so. There is no dispute that GS did not consent to sexual intercourse. The central issue is whether the prosecution have proved that JM knew that she was not consenting or was recklessly indifferent about that fact. 3 For reasons that follow, I find the accused not guilty of both counts of rape. 4 I will refer to GS as the complainant and JM as the accused for ease of reference. The charges I set out the charges. First Count Statement of Offence Rape. Section 48(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence JM between the 4th day of December 2020 and the 10th day of December 2020 at Blakeview, had sexual intercourse with GS by inserting a finger into her vagina, without her consent, knowing that she was not consenting to that act of sexual intercourse, or being recklessly indifferent as to whether she consented. Second Count Statement of Offence Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence JM between the 4th day of December 2020 and the 10th day of December 2020 at Blakeview, had sexual intercourse with GS by inserting his penis into her vagina, without her consent, knowing that she was not consenting to the act of sexual intercourse, or being recklessly indifferent as to whether she consented. Elements of offence 5 All elements of an offence must be established beyond a reasonable doubt before there can be a verdict of guilty. The offence of rape has three elements: -- 3 of 25 -- [2025] SADC 53 2 (1) The accused engaged in sexual intercourse with the complainant; (2) the complainant did not consent; and (3) the accused knew or was recklessly indifferent to the fact that the complainant did not consent. 6 Section 47 of the Criminal Law Consolidation Act 1935 (SA) defines the meaning of recklessly indifferent. I set out the section: A person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she— (a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or (b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or (c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed. Separate consideration 7 The accused is charged with two separate charges. It is necessary to consider each charge separately. I have done so. I remind myself that a finding of not guilty (or guilty) on one charge does not mean I will necessarily make the same finding in relation to the next charge. The evidence in relation to one count may be considered when looking at the other, to the extent that it informs the background and surrounding circumstances of each count. Given my findings, it is not necessary to direct myself as to the impermissible use of one count when considering the other. General Directions 8 The prosecution bears the onus to prove each element of the charge beyond a reasonable doubt. The accused, at all times, is presumed to be innocent unless I, as the trier of fact, were to be satisfied of guilt beyond a reasonable doubt. It is not enough for the prosecution to show a mere suspicion of guilt or to demonstrate probable guilt. Anything short of proving the case beyond a reasonable doubt, the verdict should be one of not guilty. A reasonable doubt would be one that, after full and careful consideration of all the relevant evidence, I am prepared to entertain. 9 The accused elected not to give evidence in his defence. The accused was not obliged to have done so. That was his right, and, as it was his right, his silence must not be used against him, nor can any inferences adverse to him be drawn from his choice not to give evidence. His silence cannot be treated as an admission or -- 4 of 25 -- [2025] SADC 53 3 used to fill any gaps in the prosecution case. I must not use the accused’s silence against him. I have not done so. Forensic disadvantage 10 In this case, the complainant alleges the accused raped her in December 2020, but she did not report the matter to the police until 16 January 2022. The defence submits that there is a forensic disadvantage to them because of the delay in the matter being reported to the police. It was submitted that the delay had resulted in the complainant having a memory that is less clear than it might have been, had she made a timely complaint. Specifically, she could not recall the detail of photographs that were shown to her by the accused, and Snapchat messages between the two were no longer available, and may have been had she complained in a timely fashion. 11 I do not consider the delay in the matter being reported has caused a significant forensic disadvantage for the accused. The detail around the nature of the material shown to the complainant would have been well known to the accused. The passage of time did not mean the accused was left in a position where he was unable to challenge the complainant as to ‘contextual detail’1. Nevertheless, I have considered the impact that the delay in the matter being reported may have had on the complainant’s capacity to recall detail about the videos she was shown by the accused, and the detail in the Snapchat messages. 12 I have also taken into account the accused’s inability to be able to access information on the complainant’s phone, given the passage of time. Relevance of conversation between the complainant and E (cousin) 13 During cross-examination, the complaint agreed that in about September 2021, nine months after she cut contact with the accused (and nine months after the alleged rapes), she spoke to her cousin E about the accused. The complainant agreed that she said to E that the accused was ‘rank’ and her cousin responded, ‘so ugly’. She agreed that four months or so after she spoke to E about the accused, she reported the matter to the police. It was an agreed fact that the complainant attended the Elizabeth police station on 16 January 2022. In re-examination, she agreed that she told E at school that the accused had hurt her. 14 The relevance of the conversations with E about the accused in September 2021, was not ever made clear. The conversations with E are hearsay. They cannot be relied upon for the truth of the assertions contained in the statement. I have not used the evidence in that way. The complainant’s statements to her cousin were not relied upon as complaint evidence. I have not had regard to this evidence to support the complainant’s credibility or reliability in any way. The statements were not said to be prior inconsistent statements. Therefore, no reliance was placed on them to affect the credibility of the complainant. Indeed, the defence conceded the 1 R v T,S (2017) 128 SASR 66, 89 (Hinton J). -- 5 of 25 -- [2025] SADC 53 4 complainant was a credible witness. In all the circumstances, I have ignored the evidence. The complainant’s evidence–Counts 1 and 2 15 In considering the charges, I will set out the complainant’s evidence in chronological order. Where appropriate, I will identify matters that are not in dispute. I will also identify matters that are in dispute. Where possible, I will make findings of fact as the issues arise. In determining the disputes between the parties, I have considered the whole of the evidence at all times in coming to the conclusions I have about the complainant’s evidence and the inferences to be drawn from it. My findings are made having regard to the whole sequence of events and are not made in isolation. That is, I have considered the combined effect of the prosecution and defence arguments as to the inferences to be drawn from the evidence. In making findings on a particular item of evidence, I have always considered the combined effect of the evidence and the prosecution and defence arguments on all matters, even though I will not always repeat that I have done so. 16 The complainant was born on 10 November 2003. She was 20 years old when she gave evidence before me about matters that occurred, in 2020, when she was 17 years old. First meeting with the accused 17 The complainant met the accused through her cousin E. Her cousin had met the accused through an app called ‘Wink’, which the complainant said was ‘like Tinder for kids’. 18 The complainant’s cousin had arranged to meet the accused at Carisbrooke Park but, according to the complainant, her cousin felt uncomfortable meeting the accused alone so asked the complainant to accompany her, which is what she did. It was agreed that the first meeting between the accused, the complainant, and her cousin occurred around 28 November 2020. 19 According to the complainant, the first interaction with the accused was ‘a bit strange’. Primarily because the accused engaged in sexual conversations with her and her cousin, which included him telling them he was ‘dominant’ and that he was looking for a ‘submissive’. He also showed the two girls photographs on eBay of a ‘gimp suit’ and told the complainant that he was interested in buying a suit for his sexual partner to wear. She said the ‘gimp suit’ was either a leather or latex jump suit that covered the whole body with a hole for the mouth and vagina. 20 She said they spoke for a couple of hours at the park. In the end, her cousin did not want to be around him anymore, so they made up an excuse that they had something to do, so he would leave, and he did. 21 Later the same day, or the next day, the complainant sent a friend request to the accused through Snapchat. She said she had obtained the accused’s contact -- 6 of 25 -- [2025] SADC 53 5 details through E. The complainant said she did not really have many friends back then, and she was looking for friends. 22 After she messaged the accused, he responded, and the two started sending each other messages. During her Snapchat discussions with the accused, she said that they spoke about the gimp suit again. The complainant said that she had not kept the Snapchat conversations she had with the accused but agreed in cross- examination that the Snapchat conversations may have included the sorts of topics the accused raised at the park, namely ‘dom, sub, BDSM’. She said, ‘I would imagine that conversation had come up again’. She could not recall the specifics, but agreed with the proposition that ‘in general terms those subjects would have been touched on’. There was no further clarification as to detail about that conversation. 23 After the first meeting, the complainant met the accused about six or seven times over the next two weeks, before the alleged offending. I will come to the detail in a moment. 24 In a general sense, she said they mostly drove around. She also gave evidence that they both went to each other’s house. She said the accused definitely liked her, tried to kiss her a few times and kept asking her if she wanted to be in a relationship, or if she was ready, but she said ‘no’ every time. She just wanted to be a friend, so she said she ‘wasn’t trying to flirt or do anything like that’. This evidence does not sit comfortably with the kissing and consensual sexual intercourse that occurred on perhaps the fourth time she met him, which I will come to later in my reasons. Second meeting –Jo Gapper Park 25 About two or three days after their first face-to-face meeting, the pair arranged to meet each other again, and the accused picked her up from her house, by car. She said the two went for a drive to a park called ‘Jo Gapper’. Whilst there, she said the two had a ‘normal’ conversation. By way of example, she said the two spoke about mutual friends and what music they liked. 26 She described the second meeting as ‘not too bad’. She said she was a bit nervous because she does not normally meet people. As to how the accused treated her during the second meeting, she said that she felt that sometimes whatever she was saying was not right, ‘like he spoke down on me, like [she] was little, and that he always had to be right’. 27 During cross examination, the complainant said that at their second meeting, the topic of sex probably came up, but she could not recall the specifics. She agreed that the topic of pornography may have come up. She was unsure if it was at that meeting that he mentioned the type of pornography that he liked. However, she did agree that sex, pornography, and the kinds of sex that each of them liked were topics that the accused regularly brought up with her. She said those topics ‘did come up a lot when [they] hung out’. There was no further detail as to the type of -- 7 of 25 -- [2025] SADC 53 6 sex that the accused said he liked or what she said in response or what she said she liked. There is no evidence as to what she said in response to what he was saying. The prosecution did not seek to re-examine on this topic. Third meeting 28 The complainant said it was ‘maybe’ the second time they went out, ‘or the third’ that the accused tried to lean forward and kiss her. She said there were times when she would kiss him back, but she ‘wasn’t always comfortable with it, and [she] did pull [herself] away from him a lot’. 29 As for the first time she kissed him, she said when the accused leaned forward to kiss her, she initially pulled away, but said the accused was persistent and kept trying so she ‘kind of caved and then did kiss him’. She was unsure if the first kiss was in the car or at the accused’s house. 30 During cross-examination, the complainant was asked if she performed fellatio on the accused on the third occasion she met him, and she said she could not recall. She was asked if there was ever a time that she performed oral sex on him, to which she said she could not recall. 31 I found it unusual that the complainant could not recall either way whether she had fellated the accused. It is perhaps understandable how she may be uncertain as to whether she fellated the accused the third time she met him (as opposed to the fourth or fifth) but to be unsure whether she ever fellated him is more difficult to reconcile. It makes me wonder about the complainant’s ability to articulate the detail surrounding her interactions with the accused prior to the alleged rapes. Fourth meeting 32 On or around the fourth occasion she met him, the complainant said she went to the accused’s house. While there, she met some of his family, then watched ‘Saw clips’ (a horror movie). She said it was possible his sexual interests and the pornography he liked were mentioned, but she was focusing more on the movie. She said the topic of sex may have come up. No more evidence was led as to what the accused said about that or what she said in response. 33 The complainant said while at his house, they kissed for a few minutes, but she was worried about his dad being around and possibly seeing them. While at his house, she said the accused brought up the topic of whether she wanted to be in a relationship. The same conversation possibly came up when they were at Jo Gapper Park. Sexual discussions 34 When they would go on drives together, she said the accused would talk about ‘him being a dominant and that he was looking for a submissive that would -- 8 of 25 -- [2025] SADC 53 7 wear a gimp suit that he bought off of e-Bay’. The complainant said she would feel uncomfortable when he raised the topic of him being ‘dominant’. 35 She said he would show her videos of other girls, which she found intimidating. She did not know if the video was his ex-girlfriend. In fact, she said it looked like multiple different girls. There was no evidence given as to what the videos showed. There was no evidence given about what she found intimidating. Was it the content of the videos or was it him having been with lots of other people, or was it something else? There was no evidence led as to what she said in response. I am left unsure, for example, if the accused showed her videos of the type of sex that occurred between them during the alleged rapes. It remains a possibility that he did. 36 She said when he showed her the videos that he would again bring up the topic of ‘trying to find a submissive and somebody who can just bow down to everything that he wants’. 37 As to her response, she said she could not specifically remember what she said, but ‘I imagine I tried to swerve away from that conversation, or if I did talk about it I didn’t say much, just kind of gave him what he wanted so we could move past the conversation’. 38 As to what she meant when she said she gave him what he wanted, she said if he said he wanted a gimp suit she said: I would say, yeah, you know, that’s cool, that’s … yeah, you know, like try and just agree with what he says almost, just to move past that quicker. 39 I note that the example she gave about giving him what he wanted related to a gimp suit. It was not referable to the evidence she gave about giving him what he wanted when she said the accused showed her the videos and said he was looking for a submissive. There was no further clarification sought from her about that. I am left unsure about how the complainant gave him what he wanted when he showed her the videos and said he was looking for a submissive. 40 The complainant said that as she spent more time with the accused, she got closer to him, but at the same time, she did not want to be in a relationship with him. She said, ‘I would try not to flirt as much, or lead him on, do anything that would make him think that I wanted to be in a relationship, and I think sometimes I maybe gave him the wrong point of view’. There was no evidence led as to what she meant, or what she did, to give him the wrong point of view. I also note her evidence that she did not flirt as much is inconsistent with her earlier evidence that she did not flirt at all. 41 She said it was clear to her that the accused wanted a ‘submissive, somebody that would listen to everything … that he would say …. Like he was looking for a relationship, he definitely wanted to be in one’. -- 9 of 25 -- [2025] SADC 53 8 Fifth meeting–Consensual sexual intercourse–Carisbrooke Park 42 The complainant said despite there being red flags about the accused, she continued to see him. On one such occasion she said that she had consensual sexual intercourse with the accused in the backseat of his car in a carpark next to Carisbrooke Park. The complainant was unsure when over the two-week period she had sex with the accused but estimated it might have been on the fourth or fifth occasion. 43 Whereas, on previous occasions, she had stayed in the front seat while he sat in the backseat, this time she got into the backseat of the car with the accused. While there, he kissed her, and she pulled away, but then she said she ‘caved’ and kept kissing him, ‘which led to more’ and they ended up having sex. She said that although she initially pulled away, she had intercourse with him because she ‘didn’t want him to keep trying. [She] just did it to make him happy, you know’. 44 She said she was on her back and the accused was on top of her. He started off in a plank position, but then straddled her with his knees on either side of her. Sexual intercourse, on that occasion, was interrupted by a security guard who approached the car, knocked on the window and told them to leave. She said after the security had knocked on the window, the accused continued on having sex with her. The complainant said she was not in the mood anymore and so she sat up. She said the accused did not look happy about stopping, but he did, and they got dressed and the accused dropped her home. 45 The complainant said that the accused was more persistent in pursuing a relationship with her after they had sex together. She said he would continually ask her if she wanted to be in a relationship. He would say things like ‘do you want to be my girlfriend?’, ‘are you ready?’, ‘do you like me?’ and she would respond with either ‘[she] was not ready’ or ‘no [she] does not want to be in a relationship’. She said, ‘it was always “no” of some kind…’. I note here that one of her responses was that she was not ready, which is different to ‘no’ and could be interpreted as meaning at some point she might be. Sixth meeting–last meeting prior to the alleged rapes 46 The complainant agreed that on or around 7 December 2020, about two days before the alleged rape and after the occasion when they had sexual intercourse at Carisbrook Park, they caught up again, and as part of that, spent time in his car. During this occasion, the accused showed her a picture of the gimp suit again. She agreed he had shown her the gimp suit a couple of times in the context of telling her what he likes sexually. She agreed during cross examination that when he raised that, she did say something like ‘that’s cool’, ‘like [she] kind of agreed with him, like [she] gave him what he wanted to hear’. She said she could not recall ever raising the gimp suit with him because it was not something she liked talking about. -- 10 of 25 -- [2025] SADC 53 9 47 She agreed on this occasion it was a possibility that the accused mentioned BDSM, but she could not recall. The following evidence is relevant: Q. In the context of talking about BDSM and dom/sub sexual relationships, does the topic of safe words come up. A. I remember him talking about safe words, but we definitely did not have a safe word. Q. You did not ever talk about the two of you potentially having a safe word. A. Not that I can remember and, if there was a safe word, I didn't say it, because I didn't know it. Q. So the word 'yellow' never came up in conversation as a safe word. A. I don't know, I can't remember. I can't - I didn't - I can't remember if we even decided on a word or not and I don't know if 'yellow' came up. To me that's not a very safe word to say that. 48 The complainant accepts they did discuss safe words. She was unsure if they decided on a word. Overall, she could not recall if they had a safe word. The complainant’s evidence that she could not remember if they decided on a safe word leaves open the possibility they did. There was no further clarification sought from her on this topic. 49 She agreed on 7 December 2020, there was possibly some kissing and possibly something else. It was suggested, in cross examination, that possibly fellatio or digital penetration occurred. She said she could not recall giving him oral sex. She said ‘maybe’ something more than kissing occurred, but she could not say what. 50 Again, I found it unusual that she was unable to give any detail as to the nature of the sexual contact between them, given the short duration of their relationship. Relevance of the interactions between the two prior to 9 December 2020, to the accused’s state of mind 51 There is no dispute that the sexual intercourse, the subject of the charges, involved physical restraint of the complainant and other applications of force, including hitting, scratching, choking and hair pulling. There is no dispute that the complainant tried to free herself from being pinned down. There was some dispute as to the extent to which the accused could see her tears because the complainant’s head was facing the other way, but that aside, her general presentation and the accused’s conduct was not in dispute. 52 The detail of the alleged rapes is set out later in these reasons. 53 The inferences that can be drawn from the interactions between the complainant and the accused, before the alleged rapes, about the accused’s state of -- 11 of 25 -- [2025] SADC 53 10 mind as to the complainant’s willingness to engage in the kind of sex that occurred, was central to both the prosecution and defence cases. 54 The prosecution submits that the various interactions, based on the complainant’s evidence, over the two weeks or so between 28 November and 9 December 2020, could never have led the accused to think the complainant had indicated she would participate in dominant submissive sex of the kind that occurred during the alleged rape. 55 First, the conversations about the accused’s sexual interest in dominant submissive sex and other aspects of BDSM, including gimp suits, did not rise beyond a general conversation about dominant/submissive sexual relationships. There was no discussion about the specifics of what the accused was interested in. 56 Second, whenever the accused raised the topic of the dominant/submissive relationship or BDSM, the complainant did her best to change the topic. When he showed her a gimp suit (for the second time) and said he wanted one, her evidence that she said ‘that’s cool’ hardly indicated to him her interest in what occurred during the alleged rape. 57 Third, the complainant had repeatedly told him she did not want to be in a relationship with him. The accused would have understood the complainant to be saying she did not want to be in a dominant/submissive relationship. 58 Finally, whilst the complainant said some things that may have given the impression that she may be interested in the accused’s sexual interest, there was nothing that indicated her agreement to participate in the kind of sex that occurred. 59 The defence submits the evidence supports the finding that the accused had told the complainant about the detail of what he liked sexually and that he wanted to do that with the complainant. The complainant telling him what he wanted to hear when the accused raised his interest in dominant/submissive sex could only be interpreted as meaning she gave him a positive response to what he was saying. The positive responses occurred in the context of increasing sexual contact between the pair (including penile vaginal intercourse), thereby reinforcing his state of mind that she would consensually participate with him in the dominant/submissive roleplay of the kind that occurred during the alleged rapes. 60 The lack of detail that the complainant was able to give about the precise wording of the discussions about dominant/submissive sex should be resolved in the accused’s favour. 61 There is no doubt that the accused raised with the complainant his interest in dominant submissive sex, which incorporated other aspects of BDSM including the use of a gimp suit. It is clear he expressed a desire to engage in dominant submissive sex and other aspects of BDSM, including using a gimp suit with her. I am satisfied the accused raised with the complainant some aspect of his sexual interest with her almost every time they met or communicated on Snapchat. -- 12 of 25 -- [2025] SADC 53 11 62 On most occasions, when asked for detail, she was unable to recall exactly what was said. I am left to speculate about the detail. The prosecution submits that all their discussions about that subject were general and that the specifics were not discussed. This cannot be accepted for the simple reason that we do not know what they talked about. 63 I accept the accused showed the complainant videos of other women. The complainant said she was not sure whether it was his ex-girlfriend, but there were other girls. However, I am unable to come to any finding as to the specific nature of what was shown. Whether it showed the type of intercourse that occurred during the alleged rape, I am unsure. It remains possible that it showed some aspect of his sexual interest. Again, it is unclear what the complainant said in response to what she was shown. 64 As she said, there were times that although she did not want to be in a relationship with him, she may have given him ‘the wrong point of view’. As I have said, there was no further detail given as to what she said or did to give him that ‘wrong’ point of view. The complainant gave evidence that when he told her about his sexual interests associated with dominant/submissive sexual relationships, she may have told him what he wanted to hear. Whilst the example she gave to illustrate how she ‘told him what he wanted to hear’ related to saying ‘that’s cool’ when he raised the ‘gimp suit’, I did not take her to be saying that was the only topic about which she may have told him what he wanted to hear. There was no evidence led that clarified her evidence about that. It remains possible she told him what he wanted to hear in relation to a range of topics, at different times. 65 The prosecution submits that the complainant’s response, ‘that’s cool’, does not necessarily indicate her interest in what he was saying. That may be so, but the critical issue is what it indicated to the accused. When you factor in her evidence that she was ‘telling him what he wanted to hear’, the inference that it did indicate to him she had an interest in what he was talking about becomes much stronger. As the defence submitted, saying ‘that’s cool’ or saying words that she thought he wanted to hear, should be taken to mean she gave positive responses to the propositions that were put to her by the accused. I accept that inference remains a reasonable possibility. 66 The last contact between the two prior to the alleged rapes occurred two days before. During that meeting, the pair sat in the back seat of his car. They kissed and may have done other things of a sexual nature, but she was unsure. It was possible there was ‘something more than kissing’, but she could not recall if she fellated him. 67 During that meeting, the accused showed her the gimp suit while telling her what he liked sexually. She said, ‘that’s cool’. She said she ‘kind of agreed with him, like [she] gave him what he wanted to hear’. I am unsure exactly what she said to indicate she agreed with him or what she said that gave him what he wanted to hear. I am satisfied it is open to infer she gave a positive response to the accused -- 13 of 25 -- [2025] SADC 53 12 on that topic. Possibly during that same occasion in the back of the car, the pair discussed the use of safe words in the context of sex they may have. The complainant said she was unsure if they decided on a word. As I said earlier, given she was unsure if they decided on a safe word, it remains possible they did. The complainant said that she would sometimes tell the accused what he wanted to hear when he raised his sexual interests. On this occasion, she agreed she did that in the context of the discussion they had about gimp suits. There was no evidence led as to whether she told him what he wanted to hear about the safe word discussion. Given her evidence that she would tell him what he wanted to hear when he raised his dominant sexual interests, I cannot exclude the possibility that she told him what he wanted to hear in response to this topic. 68 Summarising the evidence of their last meeting prior to the alleged rape. Two days prior to the alleged rape, it remains possible she indicated some agreement to wearing such a suit. They spoke about the use of safe words and discussed their use of one. The type of sex that may require a safe word is the type of sex that occurred during the alleged rape. Having said that, a safe word is only required when no or stop would not be taken as indicating the plain meaning of the word and hence the need for a safe word. It may be there was no need to decide on one. It remains a possibility that two days before the alleged rape that the accused spoke to the complainant about the kind of sex that occurred during the rape and that she responded in a way that indicated her willingness to participate in something like that. That is, she told him what he wanted to hear. 69 I do not accept the prosecution submission that the interactions between the complainant and the accused in the lead up to the alleged rapes excludes as a reasonable possibility that the accused thought the complainant would agree to the type of sex that occurred during the alleged rapes. 70 I reject the prosecution submission that the discussions between the two were only general and non-specific. The evidence that was led about the detail of the discussions was general in the sense the detail of what was said was never elicited. That is not to say that there was not a detailed discussion. The complainant did not give evidence that the conversations were only ever general. Her evidence about the ‘safe word’ conversation suggests there was more than a general discussion. I agree with the defence submission that any ambiguity about what was said ought to be resolved in favour of the accused. 71 I have considered the evidence that she told the accused she did not want to be in a relationship with him. It is important to note that she said that although she sometimes said no at times, she would also say she was not ready. Saying she was not ready indicates the potential that she may, at some point, be ready. If one assumes that when the accused asked her to be in a relationship, he meant a dominant/submissive relationship, the complainant’s answer, ‘I’m not ready’ possibly indicated to him an openness to the idea. Coupled with the positive responses, the extent of which cannot be determined, due to the lack of detail led from the complainant, the ongoing contact and the increasing sexual contact, her -- 14 of 25 -- [2025] SADC 53 13 evidence that she said ‘no’ to a relationship does not of itself or in combination exclude the possibility that the accused thought she would or had agreed to engaging in the type of sex that occurred during the alleged rapes. 72 It is true that the sexual contact between the two had not included dominant/submissive roleplay. However, the defence case is not that the accused could have thought that the complainant would consent to what occurred solely because of the type of sexual contact they had participated in previously. Rather, the positive responses to conversation about dominant/submissive sex, in combination with sexual contact, contributed to the possibility he did so. I do not accept that because the previous sexual contact did not include dominant/submissive aspects, that would have led him to believe she was not consenting to what occurred. 73 Taking all the evidence into account, I am satisfied, prior to 9 December 2020, it is a reasonable possibility the accused thought the complainant would agree to the type of sexual intercourse that occurred during the alleged rape because of the interactions that occurred over the two weeks leading up to the alleged rapes. 74 That is not the end of the matter. It is trite to say that a person indicating a willingness on a particular day to sexual intercourse (of any kind) does not mean consent will be given on a later occasion. It remains to consider what his state of mind was at the time of the alleged rapes. 9 December 2020–Alleged rape–Craigmore High School 75 On 9 December 2020, the complainant said the accused had sexual intercourse with her in the back of his car, without her consent. She said the two had arranged to meet that night, and sometime after dinner, the accused picked her up from her home. 76 The complainant said normally the accused asked her where she wanted to go but, on this occasion, he drove straight to Craigmore High School and parked in an area away from the main road, which she described as ‘quite hidden’ and ‘dark’. 77 She said his demeanour was different ‘he was a bit strict, serious’. She said he did not really talk much. She said that she, in turn, was a bit withdrawn. 78 She said the accused got in the backseat of the car and so did she, ‘because … [she] joined him the last time so [she] did again’. 79 She said while she and the accused sat in the backseat, the accused asked her ‘if [she] could trust him and if he could show [her] something, and [she] said “it depends”’. The accused, without saying anything more, crossed his hands and placed them on her thighs. He then flipped her over onto her stomach, pinned her down and had sexual intercourse with her. -- 15 of 25 -- [2025] SADC 53 14 ‘It depends’ did it mandate an enquiry? 80 The prosecution submits the accused still had to check with the complainant before proceeding, even if the complainant had agreed, on a previous occasion, to have sex like what occurred (that was not the prosecution case). The accused needed to clarify with her that she still agreed before he did what he did, especially when one considers the level of denigration and violence involved in the sex that occurred. 81 The complainant’s response ‘it depends’ after the accused asked if she trusted him demonstrated a reluctance on the part of the complainant. Bearing in mind there had been no discussion on the night as to what would occur, the accused must have considered the possibility she was not consenting but proceeded regardless, or failed to take reasonable steps to ascertain whether she was consenting. 82 The defence submits that on one view the answer ‘it depends’ indicates she was asking a question of the accused and that she wanted more information. The other inference was that the accused took her answer as a flirtatious response. It was not a ‘no’ and in the context of the broader relationship, including the sexual contact and importantly the positive encouragement she gave the accused during conversations about the type of sex that occurred, he believed he could proceed. 83 I accept the defence submission on this topic. The complainant’s response ‘it depends’ was not ‘no’, and against the background of them discussing the type of sex that occurred (which I will come to), and her agreement to participate in that type of sex, he may still have thought she was agreeing to what occurred. 84 After the accused flipped her over, he pulled her towards him. She found herself face down with her head pressed into the door, under the arm rest. She said her arms were underneath her, so her bodyweight was over her arms, and the accused was pressing her down so she could not get her arms out. She said the accused had one hand on her back pushing her down, and his other hand was free to do things. 85 While he pressed down, with her head hard up against the door and her arms pressed underneath her, the accused pulled down her shorts, just below the knees. 86 She said as the accused was pulling her shorts down, she tried to wriggle out, she was trying to wriggle her arms out, and trying to move her knees to her chest so she could create enough force to sit up, but she could not. She said she was stuck. 87 She said she was trying to lift herself up to get the pressure off her arms. She said she managed to get her right arm out, but all she could do was reach and touch his wrist that he was holding her down with. 88 She said she could not reach around to push her off him. She said she ‘was just stuck’. She said when she did touch his wrist, he did not respond, ‘he just -- 16 of 25 -- [2025] SADC 53 15 pushed down just a little bit harder so [she] couldn’t … get up’. She said the accused ‘just kept going, like he didn’t stop, or pause, he just kept going’. 89 She said he pulled her shorts and underwear off and then ‘he just started to finger [her]’. She said ‘his hands were so wet and it was rough, and it … wasn’t nice at all, it was so uncomfortable, and [she] couldn’t, [she] couldn’t move, and [she] just tried so hard to get out but [she] couldn’t move… so [she] just had to let it happen’. 90 She said she could not move his legs because he was sitting on her legs, and his arms were holding her back down. 91 She said, ‘he was fingering [her] too hard, it wasn’t comfortable, like it was just too hard’. She estimated his fingers were inside her for a few minutes. 92 The act of putting his fingers inside her vagina, in that way, forms the basis of Count 1 (rape). 93 She said after he stopped with his fingers, he put his penis straight in. Did the accused think she was aroused–relevance to his state of mind? 94 The complainant said there was a lot of saliva, which the accused had put on her vagina so she thought the accused may have thought she was ‘wet’ and that she ‘wanted it’, ‘but it wasn’t [her] it was just his saliva’. 95 The defence made a submission that the complainant’s opinion that the accused may have thought she was aroused (‘wet’) because of the digital penetration gave rise to an inference that the accused might have thought she was consenting. To the extent that the defence submission invited me to conclude that the complainant’s opinion as to the accused’s state of mind could inform that issue, I reject that submission. The complainant’s opinion as to what the accused was thinking about her level of arousal is inadmissible opinion evidence. 96 I have taken into account the complainant’s evidence that her vagina was wet when he put his penis inside her. When I consider the saliva the accused applied to her vagina, I do not accept this evidence gives rise to an inference that the accused thought the complainant was consenting to penile vaginal intercourse. 97 Returning to the complainant’s account of the penile vaginal intercourse. She said he never asked her if she was okay, ‘he just kept going, kept on getting faster and harder’. At one point she said he put his arm around her neck and was choking her, so she could not breathe. She estimated that the choking had occurred for about two minutes. She said he used a lot of force when he choked her. 98 She found herself wheezing and crying, and when she tried to struggle, he got ‘harder and stronger when he was thrusting’. She said it was like he enjoyed it. She said when he finally let go of her neck, her head fell down and hit the arm rest on the car door, which made her cry even more. -- 17 of 25 -- [2025] SADC 53 16 99 At one point, he was pulling her head back by the hair. She said she froze and could not do anything. The complainant said she reached a point where she tried to get out and he grabbed her by the hair, and she gave up. She said: [She] just froze … [she] couldn’t remember much after [she] tried to get out. … [She] just let it happen, because, like, [she] didn’t know what else to do. [She] didn't know how else to try and [she] didn't know that if, if [she] did try, if [she] did get out, then [she] didn't know what would have happen to [her], like what if, if it would have made the situation worse, or better, so [she] just … let it happen. 100 She was asked how loud her crying was, and she said ‘it wasn’t a loud cry, but … [she] was wheezing and gasping for air and [she] was trying to like, trying to talk and get some words out [she] couldn’t because she was so emotional’. She described that it was ‘the kind of crying where you are gasping for air because you’re so exhausted, that’s how [she] was crying. So you could, you could hear [her], like, trying to get air and [her] chest rising and falling…’. She went on: Q. Can you describe how loud you were gasping or crying at that time. A. It was, it was pretty loud, but he was also grunting and, like, he was enjoying it so, I don't know if he even heard me over like him, it was like him, his own pleasure, you know. Could the accused hear her crying? 101 The defence submits the accused may not have appreciated the complainant was crying. Further, the complainant was facing the other way to him, so he would not have been able to see her crying from his position. 102 The complainant’s description as to how loud it was is perhaps best weighed, to the extent one can, by her evidence that he may not have been able to hear it. She was not saying she was loudly sobbing or balling in a way that could not be missed. It is possible he did not hear her crying or did not immediately recognise what he heard, as crying, given the description of the sounds she was making. 103 The complainant said apart from telling her she had a ‘tight pussy’, nothing else was said between the two. 104 She said that it felt like he was trying to stop himself from ejaculating. He would go faster and then stop, but not withdraw his penis, then would go faster. When he would get faster, he would smack her buttocks really hard. She said it was ‘stinging’ and there were fingernail marks in her buttocks. Her buttocks were bleeding. She described ‘it was really hurting. [She] was just in so much pain’. She said the smacking ‘was just really hard. … It really hurt’. -- 18 of 25 -- [2025] SADC 53 17 105 She said at no point was she consenting. She said she was crying ‘[she] didn’t want to be there at all, [she] was trying so hard to get out of that position, but [she] couldn’t’. 106 The penile vaginal intercourse she described forms the basis of Count 2 (rape). The complainant did not voice her lack of consent–relevance to the accused state of mind? 107 The complainant did not say anything to indicate she was not consenting at any point. I make it clear that the law does not require a person to say the word ‘no’ or otherwise verbally indicate a lack of consent to prove a lack of consent or knowledge of a lack of consent. The law is well settled on that topic. I direct myself pursuant to s 34N of the Evidence Act 1929 (SA). 108 In this case, I accept the complainant was not consenting. The defence concede that it was open for me to find that she was not consenting. The issue is the effect that her not telling the accused, using words, that she did not want to have sex with him, or saying no or otherwise voice her opposition, had on the accused state of mind. 109 The prosecution says it was not necessary for her to say ‘no’ for the accused to understand she was not consenting or the possibility that she might not be. The prosecution submits that the physical response of the complainant was sufficient to prove the accused knew or was recklessly indifferent to the fact she was not consenting. The prosecution submits rhetorically, what else could she do to signal her lack of consent? 110 The defence submission was that the complainant, not saying anything in opposition to what was going on, was telling in the context of this case. The complainant had said ‘no’ when the security guard found them having sex in the car. The accused could reasonably have thought if she did not want to participate, she would say no or something similar. 111 Not saying anything, when she could have, and taking into account she had been telling the accused what he wanted to hear when he spoke to her about dominant/submissive sex, may have contributed to the inference that he thought she was consenting. 112 I accept the defence submission that the complainant not saying anything to indicate a lack of consent, in the particular circumstances of this case, may have contributed to the accused thinking she was consenting. 113 It may be accepted that absent agreement to engage in intercourse involving physical restraint and violence, where a person is physically restrained, choked, hair pulled, buttocks slapped and scratched, and were physically trying to free themselves, would clearly indicate to the other person a lack of consent. -- 19 of 25 -- [2025] SADC 53 18 114 However, in this case, it remains a reasonable possibility that there were discussions that indicated to the accused the complainant’s agreement to engage in dominant/submissive sex like what occurred. In those circumstances, the complainant, not saying anything to voice her opposition to what was occurring, possibly reinforced the idea that she was consenting. Inferences from her physical response 115 The prosecution submits that the complainant’s physical response to what occurred must have indicated to the accused she might not be consenting. There was the qualified ‘it depends’ which required some enquiry. It was essential before proceeding to have the type of intercourse that he engaged in, to have a high degree of clarity around the issue of consent. Absent that, he could never be sure if her responses were real or role play. Her physical response, coupled with the obvious signs of upset, including her crying, given the nature of the intercourse and the denigration involved, meant he had to check. In not doing so, he must have considered the possibility that she was not presenting and either proceeded any way, or if he did consider the possibility, he did not take reasonable steps to ascertain whether she was consenting. 116 The defence submits the accused’s knowledge of, or reckless indifference about a lack of consent that may ordinarily be inferred from the complainant’s evidence, could not be so readily drawn in this case because of the discussions that took place about the accused’s sexual interest in dominant/submissive sex, and the complainant’s responses to those conversations. 117 The defence submits that the type of sexual activity that the complainant describes occurring during the alleged rapes, was the type of sexual activity the accused had told her he wanted to engage in, and the effect of her evidence was that she had told him what he wanted to hear. In addition to that, the complainant did not say anything to indicate she was not consenting. 118 Seen in that context, the physical acts described by the complainant in opposition to what was occurring in the car were not such as to indicate to him that she was not consenting. What went on in the car was exactly what he had been talking to her about. Some resistance to the force was to be expected. His physical dominance of her, him smacking her (causing her some pain), choking her, pulling her hair, was all part of it. 119 Based on her evidence, for the reasons I have given, it is possible the accused did not hear the complainant crying or mistook it for something else. I accept the defence submission that the evidence cannot exclude the reasonable possibility that her physical responses and the accused’s dominant behaviour, including physically holding her, choking, pulling her hair, slapping and grabbing her was the kind of sex they had been discussing, and which she had indicated (perhaps not intentionally) a willingness to engage in. -- 20 of 25 -- [2025] SADC 53 19 120 I am not satisfied the accused knew the complainant was not consenting, or that he was recklessly indifferent as to the fact that she was not consenting. It remains a reasonable possibility that he thought she was consenting. In coming to that conclusion, I have taken into account the prosecution submissions as a whole, including the submissions made as to statements made by the accused to the complainant after intercourse which, for reasons I explain, do not amount to an admission against interest. Relevance of events after intercourse 121 Eventually, the accused stopped having intercourse with the complainant and sat back in the chair. She said, although he did not ask her to fellate him, she thought he may have wanted her to do that. She said she was in shock and just cried instead. 122 She said when he sat up, she was glad to be free, and she told him she wanted to go home. She said she ended up laying her head on his lap. Why did the accused stop having intercourse? 123 The defence submits had the accused known she was not consenting, he would not have stopped before he had ejaculated. When the accused sat back on the seat, he would have forced her to fellate him, if he knew she was not consenting. He did not continue with oral intercourse because it was then, after the sexual intercourse had finished, that he realised she may not want to continue. It was then that he observed the tears and realised that this was not role-playing. 124 I do not accept that the accused stopping indicates he thought she was consenting. He may have had enough; he may have ejaculated. The complainant said she was unsure if he had. He may have thought he had gone far enough. Didn’t mean it to get like that–inculpatory or exculpatory? 125 The complainant said shortly after the alleged rapes, and while her head was in the accused lap, the accused said to her ‘that he didn’t mean for it to get like that but that’s just what happens when he’s a dom’. 126 She said that only made her cry more because it should not have ever got that bad, ‘like there was no stopping. He didn’t ask if [she] was okay. Like it was just so normal for him but [she] was just in so much pain’. 127 The prosecution submit that the accused’s statement ‘he didn’t mean it to get like that…’ was consistent with him knowing or being recklessly indifferent to whether he was consenting. Had the accused thought she was not consenting, his response would have been one of surprise when he saw that she was upset. Having considered that submission, I am of the view that there is a degree of speculation in coming to that conclusion about this evidence. It is difficult to predict how someone might respond in such a situation. It is not possible, based on what was said, to conclude that the words used amount to an admission to knowing the -- 21 of 25 -- [2025] SADC 53 20 complainant was not consenting or being recklessly indifferent to that fact.2 To the extent that the prosecution submission invites the Court to conclude the accused’s response amounts to an implied admission, I reject that submission. 128 The defence submits that the accused’s statement to the complainant, after he stopped having sexual intercourse with her, that ‘he did not mean it to get like that’ was a ‘sympathetic extension to someone who he cares for suffering’ and was consistent with him not knowing she was not consenting until after intercourse. I do not accept the defence submission. If anything, what he said was unapologetic. 129 I have concluded the evidence is neutral as to his state of mind. The video, and the drive home–exculpatory? 130 The complainant said afterwards she could barely sit on her bottom, but she could not see the injury, so while still in the backseat of the car she asked the accused to take a photograph of it on her phone. Instead, the accused took a short video. A still shot taken from the video was tendered, as was the video itself. The photo and video show what appears to be a handprint on her buttocks and marks consistent with having been caused by fingernails. While I cannot be sure as to the level of force required to leave the marks, it is reasonable to conclude that the injuries to her buttocks would have required some force and would have caused pain, which is consistent with what the complainant described. 131 The complainant said that the two of them stayed in the back of the car for a while because she was crying a lot. She said when she felt she could, she got into the front of the car, and the accused drove her home, stopping at the service station to get fuel on the way. 132 The defence submits the accused filming her buttocks, sitting with her in the back seat until she felt good enough to get into the front seat, and stopping at the service station on the way home was conduct consistent with the accused not knowing the complainant was not consenting. 133 It is enough to record that I do not accept the defence submissions on all of those topics. In my view, the evidence is neutral as to his knowledge of her lack of consent. Given my ultimate conclusion, it is not necessary to set out the reasons for so concluding. It is enough to say, I have not taken into account this evidence to support the findings I have made about the accused’s state of mind. The next day–relevance? 134 The complainant said she saw the accused the next day at his house. She said she did not want to be there because she was still thinking about the night before. She said she went there because she did not know what was going to happen if she did not see him. While at the house, she said they played a computer game, and the accused kept trying to kiss her, but she kept pulling away. At some point, the 2 Burns v R (1975) 132 CLR 258. -- 22 of 25 -- [2025] SADC 53 21 accused suggested that they play a computer game called ‘Call of Duty’ and that if she died in the game, she would have to kiss him or take an article of clothing off. The complainant said she did not want to and got moody, then the accused took her home. 135 The complainant said that after she got home, she blocked the accused on her Snapchat. 136 The defence did not suggest that the complainant’s attendance the next day at the accused’s house indicated that she may have been consenting. Rather, the defence submission was that the accused’s behaviour towards her the next day indicated that if she said that she did not want to do something of a sexual nature, he respected her wishes. It demonstrated that had he thought she was not consenting the night before, he would have stopped. 137 I reject that submission. It does not follow that just because he abided by her wishes the next day that he therefore would have done the same the day before. He was in his parents’ house. That may have moderated his behaviour. He simply may have been wishing to appease her. There may be many other reasons. I have not taken this evidence into account as supporting an inference that the accused thought the complainant was consenting. Conclusion and key findings 138 The case centres around dominant/submissive sexual intercourse and other aspects of BDSM. The issue was whether the prosecution have established that the accused knew or was recklessly indifferent as to whether the complainant consented to participate in that type of sexual intercourse. 139 As at the date of the alleged rapes, the complainant had known the accused for a little under two weeks. 140 Over the course of the two weeks leading up to the alleged rapes, there was consensual sexual contact, including kissing and consensual sexual intercourse while in the back seat of the accused’s car. There was also the possibly of fellatio and digital penetration, although the complainant could not recall either way if she fellated the accused. 141 The accused told the complainant from the moment he met her about his sexual interest in dominant/submissive sexual relationships and other aspects of BDSM. The accused sexual interests were continually raised by the accused over the next two weeks. 142 Critically, there is a lack of specificity about the nature of the discussions, the level of detail that was discussed and who said what. To the extent that the complainant was able to provide detail as what was specifically said, it included a discussion with the accused, two days prior to the alleged rapes, about the use of safe words during sex. The complainant was unsure if they decided on one. It -- 23 of 25 -- [2025] SADC 53 22 remains at least possible they did. Overall, I am left unsure about the detail of the conversations between the complainant and the accused about dominant/submissive sex prior to the alleged rapes. It remains a reasonable possibility that there were specific discussions about the type of sex that occurred during the alleged rapes. 143 The complainant’s evidence is to the effect that when the accused raised the topics of dominant/submissive sex or BDSM, even though she was not actually interested in that type of sex, she would tell the accused what he wanted to hear. The evidence does not allow me to make a finding as to what specifically the complainant said when she told him what he wanted to hear. 144 Based on the complainant’s evidence I am unable to exclude as a reasonable possibility that the accused told the complainant about the detail of what he wanted to do with the complainant and the complainant answered in a way that made him think she wanted to participate with him in what occurred. 145 The alleged rapes involved the accused turning the complainant over onto her stomach in the back seat of his car, then holding her down while he pulled her pants off, then digitally penetrated her, then having penile vaginal intercourse with her. The complainant physically resisted at times and at other times said she ‘just let it happen’. At no time did the complainant give voice to her lack of consent. She did not say anything. I reiterate what I said earlier. Not saying no does not mean the complainant is to be taken to be consenting. Indeed, as I have said, I find she was not consenting. However, the complainant not saying anything to voice her lack of consent is relevant in the circumstances of this case to the accused’s state of mind. During penile vaginal intercourse the accused choked the complainant, pulled her hair, slapped and grabbed her buttocks leaving a hand mark and scratches. 146 It remains possible, for the reasons I have given, that the type of sex that occurred was what the accused had been speaking to the complainant about and she had responded in a way that indicated her willingness to participate in dominant/submissive sex of that kind. It remains possible that at the relevant time, taking into account the background, and what occurred during intercourse, the accused thought the complainant was consenting to the intercourse that occurred. 147 I make it clear that I do not make a positive finding that the complainant did tell the accused that she would participate in the type of sex that occurred prior to the alleged rape or that there was an agreement about safe words. The lack of clarity in the evidence simply does not allow me to exclude that as a reasonable possibility. Finally, I do not positively find that the accused knew the complainant was not consenting. In fact, I am of the view he probably was at least recklessly indifferent as to whether she was consenting. However, I am unable to make that finding beyond a reasonable doubt. -- 24 of 25 -- [2025] SADC 53 23 148 My ultimate finding that the accused is not guilty is because the evidence cannot exclude as a reasonable possibility that the accused thought the complainant was consenting. 149 Based on the evidence I make the following key findings: (1) the accused digitally penetrated the complainant’s vagina and then had penile vaginal intercourse with her on 9 December 2020; (2) the complainant did not consent to either form of sexual intercourse; but (3) it is a reasonable possibility that the accused thought the complainant was consenting to the sexual intercourse the subject of the charges. 150 It follows that I am not satisfied beyond a reasonable doubt that the prosecution has proved the mental element for the charge of rape on either Count 1 or 2. 151 I find the accused not guilty of both counts of rape. -- 25 of 25 --